A recurrent and still controversial topic in the scope of the Administrative Tax Appeals Board (Carf) is the application of an isolated fine of 50% for non-payment of Corporate Income Tax (IRPJ) and Social Contribution on Net Profits (CSLL) advances, cumulated with an ex-officio fine of 75%.
The discussion regarding the possibility of simultaneous charging of fines in IRPJ and CSLL assessments is based on the provisions of article 44, subsections I and II, of Law 9,430/96, as amended by Law 11,488/07. This legislative change divides the discussion into two periods.
For taxable events prior to 2007, that is, occurring before the legislative change, the understanding was consolidated by ruling out the cumulative collection of the fines. Only the requirement for the ex officio fine was maintained. This position is already settled, and was even the subject of Carf Precedent 105, approved in 2014. However, for the taxable events that occurred after 2007, the debate continues.
Those who argue for the possibility of accumulation allege that the change brought about by Law 11,488/07 differentiated the calculation bases for the two fines (the 50% fine is now calculated on the monthly payment, while the 75% fine is calculated on the entirety of the unpaid tax), solving the original problem of identity of bases that would prevent double payment. Also, in a finalistic argument to justify the double penalty, they argue that maintaining the penalty is essential to prevent the harmful taxpayer behavior of evading payment of the estimates.
On the other hand, those who argue for the impossibility of accumulation affirm that, in the annual form for calculation of the IRPJ and CSLL, the monthly estimates, by their very name, are mere provisional anticipation of the eventual amount due when the taxable event occurs, that is, on December 31 of each calendar year. In this sense, non-payment of the estimate is a "passing" offense, a preparatory act for the act of reducing the IRPJ or CSLL at the end of the year, while non-payment of the estimate is only the means of execution for non-payment of the annual amounts. The basis for this reasoning is the penal principle of consonance or absorption, in which penalty as a means is absorbed by the penalty as an end in itself, not resisting the application of two penalties. Furthermore, penalizing the taxpayer for the same conduct with a 75% fine[1] and a 50% fine would be excessive, exceeding the reasonableness and proportionality required.
The current scenario of the Carf is one of uncertainty, with decisions being made in both directions, and often in tie votes (resolved by the provisions of article 19-E of Law 10,522/02, in favor of the taxpayer).
The situation is aggravated by the current distribution of jurisdiction for deciding the issue in the Superior Chamber of Tax Appeals (CSRF), i.e. the highest judgment bodies in the federal administrative sphere. Although this is traditionally a matter for the bodies of the 1st Section only, responsible, according to article 2, subsections I, II, and VI, of the Internal Rules of the Carf (Ricarf) for administrative proceedings that deal with IRPJ, CSLL, and related penalties, by force of Carf Ordinance 15,081/20, this competence was provisionally extended to the 3rd Panel of the CSRF, responsible, in principle, for judgments on contributions to PIS and Cofins, IPI, customs, and IOF, among others. Therefore, at present, depending on the date of filing of the appeal, the same issue can be examined by one of the two superior judgment bodies: 1st or by the 3rd Panel of the CSRF.
In a historical analysis, taxpayers who had their claim reviewed by the 1st Panel had better luck, with a decision declaring the impossibility of simultaneous levy, regardless of the year of the taxable event, due to the rule of article 19-E of Law 10,522/02 (see appellate decision 9101-005.986).
The 3rd Panel of the CSRF, on the other hand, reviewing the same issue under this provisional jurisdiction, has been deciding by majority vote in favor of the possibility of maintaining the simultaneous collection for triggering events after 2007 (see appellate decision 9303-012.015).
However, the 1st Panel of the CSRF seems to be changing its position, aligning itself with the understanding of the 3rd Panel of the CSRF. In the April 2022 session, by majority vote, the 1st Panel dismissed a taxpayer's special appeal and upheld the levy of the fines concurrently. What seems to have been decisive for reversal of the discussion was the change in the composition of the body, with the entry of alternate board member Gustavo Guimarães Fonseca, who expressed his position in favor of maintaining the collection of fines concurrently.
This change in case law, in our view, makes visible the legal insecurity emanating from the body and the instability of the case law formed.
In the judicial sphere, the Second Panel of the Superior Court of Appeals (STJ) has ruled that the principle of consolidation must be applied in situations of concomitance of the payment of an isolated fine and an ex-officio fine for failure to pay the tax ascertained at the end of the fiscal year and for failure to advance it in the form estimated,[2] since the more serious offense encompasses the lesser one.
The understanding brought in by the Second Panel of the STJ goes against the position adopted by part of the Carf judges when they limited the application of Carf Precedent 105 to taxable events occurring before 2007.
The Federal Supreme Court, in turn, has no appeals endowed with general repercussion that discuss identical theories, but, based on the fact that the concomitant imposition of these fines results in payment of a penalty of more than 100% of the tax, in line with prior decisions of the Supreme Court,[3] [4] we would have the payment ruled out due to recognition of its confiscatory nature.
Although they are not mandatory for Carf's panels, according to article 62, paragraph 1, subsection II, letter "b", of Annex II of the Ricarf, these decisions signal the normative interpretation by the highest judicial bodies and should be considered to be determining precedents for the correct outcome of the case. The expectation is that Carf will rethink its position and rule out the payment of cumulative fines, consolidating a scenario that respects the boundaries of our legal system for the application of penalties.
[1] Without considering the existence of fraud or deceit, which can increase the fine by 150%.
[2] AgRg no REsp 1.499.389/PB, opinion drafted by Justice Mauro Campbell Marques, Second Panel, DJe 9/28/2015; REsp 1.496.354/PR, opinion drafted by Justice Humberto Martins, Second Panel, DJe 3/24/2015.
AgInt no AREsp 11603525/RJ, opinion drafted by Justice Francisco Falcão, Second Panel, Dje 11/25/20020
[3] A.g Reg no RE 833.106/GO
[4] Recently, the general repercussion was recognized in Topic 1.195 in order to review the constitutional issue regarding the "possibility of setting a punitive tax fine, not qualified, in an amount greater than 100% of the tax owed.”
